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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Savage v London Borough of Hillingdon [2010] EWHC 88 (Admin) (28 January 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/88.html Cite as: [2010] EWHC 88 (Admin), [2010] PTSR 1859

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London. WC2A 2LL
		28th January 2010

Timothy Corner, QC:

INTRODUCTION

1. This is a claim for Judicial Review of the alleged failures of the Defendant Council ("the Council") to perform its statutory duties pursuant to section 190 of the Housing Act 1996 ("the 1996 Act").

FACTUAL BACKGROUND

2. The factual background is as follows. The Claimant is a single mother with a 4 year old son. She works 16 hours per week as a cashier, and is paid about £100 per week, and is also a student. She has no savings. From October 2005, she rented private rented accommodation in Uxbridge. Housing benefit contributed towards the rent, but there was a weekly shortfall. The Claimant failed to pay the shortfall and arrears accrued. Possession proceedings were issued, and the Court made a possession order, with the Claimant being evicted on 23^rd October 2008.
3. The Council's records show that the Claimant sought, and was given, housing advice from the Council at various times between 2005 and 2008. For example, on 19^th December 2007, she visited the Council's offices and was advised to set up a new direct debit in favour of her landlord.
4. On 9^th September 2008, the Claimant again visited the Council's office, and completed a Housing Advice and Options Form. On that form the Claimant stated that she had been issued with a possession order by the Court, and that she had been advised by her landlord to seek the Council's help. The Council's officer recorded on the Form that the "Initial Advice and Options given" were as follows;

"Unable to prevent homelessness

Explained homelessness legislation & Client is likely to be IH" [intentionally homeless].

5. On 20^th October 2008, the Claimant applied to the Council for assistance under Part VII of the 1996 Act. She was provided first with bed and breakfast accommodation, and then a two bedroom flat in Hayes.
6. On 3^rd December 2008 the Council decided that the Claimant was eligible, homeless, and in priority need, but that she was intentionally homeless, and so informed the Claimant in a letter of that date ("the section 184 letter"). The Claimant failed to seek a review of that finding and for the purpose of the hearing before me she accepted that she was indeed intentionally homeless.
7. In the section 184 letter, having said that the Claimant was intentionally homeless, the Council's officer continued;

"The Council's decision means that we have no duty to secure accommodation for you, but we do have a duty to offer you advice and assistance to help find your own accommodation. Please contact our Housing Advice and Options Team.... for this advice and assistance.

In reaching this decision, I have had regard to s 117 of the homelessness code of guidance……

I have also had regard to s213A of the Housing Act 1996 ... .which requires the Housing Authority to have arrangements in place to ensure that Social Services are alerted as quickly as possible to cases where the applicant has children under 18 years old, and the Housing Authority considers the applicant intentionally homeless.

You are therefore given 28 days to make alternative arrangements for your accommodation. This is considered to be reasonable time to enable you to make your own arrangements with advice and assistance from the council. Your temporary accommodation will be terminated on Tuesday 12 January 2009. Your last night at the accommodation will be Monday 11 January 2009….."

8. The Claimant's statement deals with the receipt of the section 184 letter at paragraph 10;

"In or around the second week of December 2008 I received the Section 194 decision informing me that the Council would not assist me. When I received the decision letter I approached the Housing Needs Reception at the Council as there were things written that were incorrect and I was told by the Receptionist that I could not speak to anyone as the case was already closed and a decision had been made. I was advised to challenge the decision but that I must do this immediately. She did not give me any other advice and seemed to discourage me from appealing, I was told that there was nothing they could do for me and that I should approach Social Services. The section 184 decision letter stated that whilst I am challenging the decision I will have to find my own accommodation. I did not appeal the decision as I thought I had lost the case, the Council seemed adamant they would not help me and even if I appealed I would have to find my own accommodation."

9. The Claimant visited the Council's offices on 18^th December 2008. The Council's records show what she was told;

"Client advised today that HAOT [the Council's Housing Advice and Options Team] cannot assist with f/f [meaning the "Finder's Fee" scheme referred to below] , as she is not eligable for scheme. IH [intentionally homeless] decision issued 3/12/08, client to make own arrangements, advised she will still be entitled to h,b [housing benefit] if eligable and on low income."

10. I have left typing errors in the above and other quotations from documents copies of which were provided to me.
11. I should mention that the Housing Advice and Options Team, or HAOT, is one of the teams within the Council's housing department. It was explained to me that where HAOT is satisfied that an applicant is homeless, it will refer the applicant to the Emergency Housing Unit ("EHU"). It is appropriate also to mention at this stage the Council's Finder's Fee scheme. By this scheme, the Council helps people find accommodation by removing the burden of having to pay large deposit payments to the landlord. Under the scheme, the Council assists by providing a landlord or letting agent a non-returnable payment of up to £1500. This premium is paid instead of any deposit or rent in advance that a landlord or agent may ask a tenant to pay. The money is paid direct to the landlord. In return the landlord must agree to let his property, to someone referred by the Council, for a minimum of one year and the property must meet certain standards of safety and repair.
12. The Finder's Fee scheme is explained in a Procedure Note which was provided to me. At section 5, there is an "Eligibility checklist", which sets out a list of criteria which clients wishing to take advantage of the scheme are to satisfy. One of the criteria is that the client must "Not appear to be intentionally homeless." As the second statement of Ms Brickwood explained, the scheme changed after the events which were the subject of these proceedings. I deal here with the scheme as it was when the Claimant's case was being dealt with.
13. The eligibility criteria are explained in more detail later in the Procedure Note. The criterion relating to intentional homelessness is explained at paragraph 5.6:

"5.6 Not appear to be intentionally homeless

Officers need to verify the reason a client is homeless or threatened with homelessness. Where it appears this has been caused by something the client has done or failed to do then they are not likely to be eligible for the scheme and the case should be discussed with a team leader. "

14. At appendix 4 to the Procedure Note is a copy of the text of the Finder's Fee Leaflet. At stage two-"eligibility" the leaflet states that

"To get help from the Finder's Fee scheme, you must .....be homeless or may become homeless through no fault of your own...."

15. On 25^th February 2009 the Council issued a possession claim in respect of the flat in Hayes.
16. The Claimant consulted solicitors, the Hillingdon Law Centre. On 7^th April 2009 her solicitors requested a review, out of time, of the Council's decision that the Claimant was intentionally homeless. On 14 April 2009 the Council refused to conduct such a review.
17. The Claimant sought assistance from the Council's Social Services department "Social Services". Social Services carried out an assessment of the Claimant's • th situation on 16 June.
18. On 11^th August 2009 the Claimant was evicted from the flat in Hayes. She spent most of that night on the doorstep of the premises until a friend's mother managed to find a room for her and her son.
19. Also on 11^th August 2009, the Claimant's solicitors wrote to Social Services seeking assistance under the provisions of the Children Act 1989.
20. On 12^th August 2009, the Council's legal department wrote to the Claimant's solicitors on behalf of Social Services stating that as a result of Social Services' assessment carried out in June, the Council was not prepared to offer accommodation to the Claimant, but that it was prepared to offer accommodation to her son, pursuant to section 20 of the Children Act.
21. In August 2009 the Claimant's solicitors instructed counsel who appeared before me on the Claimant's behalf. She told me that she advised the Claimant that she could not force Social Services to accommodate her, and that she should contact the Council's Housing department.
22. On 17^th August 2009 the Claimant's solicitors wrote to the Council as housing authority, stating that the Claimant

"..urgently requires assistance in accordance with your obligations under s190 of the Housing Act (as amended). In particular, she requires a rent deposit as the necessary assistance under s190 of the Housing Act 1996.

Please note Social Services have concluded that they will only accommodate our client's child. As their decision interferes with our client's Article 8 right to a family life, this is a relevant consideration for your department when exercising your duty under s190 of the Housing Act...."

23. An officer (Mr Murtagh) from HAOT telephoned the Claimant's solicitors on the same day. I set out the Claimant's solicitor's note of the conversation;

"16.40pm. Call from David from Housing Advice Options. They will not be able to assist with a deposit. I ask to confirm in writing. If have child they refer to social services. I inform him that they have refused to assist, will assist child only. I ask what other advice can they give in accordance with their duties? He replies; look at ways of raising deposit. Can she go to bank for a loan? I reply don't know, but would that make a difference if she does and they refuse? He replies no. She then needs to consider approaching family and friends. I inform him she has exhausted all options. Then, look at selling property or possessions to raise deposit? I inform him she has none that I am aware of. There is nothing else they can do. I inform him this is insufficient, as it does not help her. He replies that is all they can do. She needs to look around, some landlords accept tenants without deposits, although rare but can happen. I inform him she has tried this but also not worked. He cannot guarantee any of the options will work but that is the advice they can give her. I ask him once again if they are not going to help please can they confirm in writing and send by fax. He will ask legal team to draft something...."

24. On 20^th August 2009 the present proceedings were commenced. On that date Wyn Williams J adjourned the issue of permission, but granted interim relief ordering the Council to provide accommodation for the Claimant and her son forthwith.
25. On 21^st August the Claimant visited the Council's offices and spoke to two Council officers. I set out the Council's record of the meeting, insofar as relevant;

"Client has appraoched today and was seen by myself and Somo. Client stated that since being evicted she has been staying with a lady from her church....Client confirmed taht she had received the decision letter and that she knew she was meant tyo leave the accommodation in Januaray, she stated she did not have anywhere to go and didn't know where to do, and si she stayed there.

She said she aso read tat she had 21 days to appeal but she felt she wouldnt get any help so she didnt bother.

Client stated that she went to SS [Social Services] in June after she received court order and they said tahtthey could not help her but they could take her son as the duty is towards him. Client stated taht no change of circumstances since letter issue. Client stated taht she was aware that she should have paid rent but because of overpayments she had to pay more. Advisedon what IH [intentional homelessness] means and that the options avaialble to her are PR acc [private rented accommodation], and going to HB [housing benefits] to see if and how much they can assist her by, advised that they can do a QB assessment as she works 16 hours per week. Advised to do this prior to agreeing to take on any property. Also advised on locata and she stated tahts he coomplete the form 2 weeks ago." [typing errors retained as per the original document]

26. After that interview, the Claimant was directed to another Council officer, to arrange for the provision of the accommodation ordered by Wyn Williams J.
27. On 23^rd October 2009, Nicola Davies QC granted permission to apply for permission for judicial review by consent, and ordered the continuation of the interim relief ordered by Wyn Williams J.

LEGAL BACKGROUND

28. Part VII of the 1996 Act deals with homelessness and threatened homelessness. Section 175 defines those terms. Section 176 defines the term "accommodation available for occupation." Section 177 deals with the issue whether it is reasonable to continue to occupy accommodation. Section 178 deals with the cases where a person is associated with another person for the purposes of Part VII.
29. Section 179 provides in part;

"(1) Every local housing authority shall secure that advice and information about homelessness, and the prevention of homelessness, is available free of charge to any person in their district."

30. Section 182 provides in part;

"(1) In the exercise of their functions relating to homelessness and the prevention of homelessness, a local housing authority or social services authority shall have regard to such guidance as may from time to time be given by the Secretary of State."

31. Section 183 introduces the provisions of Part VII applying to where a person applies for accommodation or assistance in obtaining accommodation and the authority has reason to believe that he is or may be homeless or threatened with homelessness.
32. Section 184 provides in part

"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves-

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part...

(3) On completing their inquiries, the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision

(5) A notice under subsection (3) ...shall also inform the applicant of his right to request a review of the decision and of the time within such a request must be made (see section 202).

(6) Notice required to be given to a person under this section shall be given in writing...."

33. Section 188 deals with the interim duty to accommodate in the case of apparent priority need.
34. Section 189 deals with priority need for accommodation, and provides that a person, such as the Claimant, with whom dependent children reside, is such a person.
35. Section 190 provides

"(1) This section applies where the local housing authority are satisfied that an applicant is homeless and eligible for assistance but are also satisfied that he became homeless intentionally.

(2) If the authority are satisfied that the applicant has a priority need, they shall-

(a) secure that accommodation is available for his occupation for such period as they consider will give him a reasonable opportunity of securing accommodation for his occupation, and

(b) provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

(3) If they are not satisfied that he has a priority need, they shall provide him with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

(4) The applicant's housing needs shall be assessed before advice and assistance is provided under subsection (2)(b) or

(3).

(5) The advice and assistance provided under subsection (2) (b) or (3) must include information about the likely availability in the authority's district of types of accommodation appropriate to the applicant's housing needs (including, in particular, the location and sources of such types of accommodation)."

36. Section 191 deals with becoming homeless intentionally. Section 192 sets out the duty to persons who are not in priority need and not homeless intentionally. In relation to such persons section 192 provides that

"(2) The authority shall provide the applicant with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation.

(3) The authority may secure that accommodation is available for occupation by the applicant.

(4) The applicant's housing needs shall be assessed before advice and assistance is provided under subsection (2).

(5) The advice and assistance provided under subsection (2) must include information about the likely availability in the authority's district of accommodation appropriate to the applicant's housing needs (including, in particular, the location and sources of such types of accommodation."

37. Section 193 applies where the local housing authority are satisfied that an applicant is homeless, eligible for assistance and has a priority need, and are not satisfied that he became homeless intentionally. Section 193 (2) provides that

"Unless the authority refer the application to another local housing authority... they shall secure that accommodation is available for occupation by the applicant."

38. Section 202 governs the right to request a review of a decision. It provides in part

"(1) An applicant has the right to request a review of - ...

(b) any decision of a local housing authority as to what duty (if any) is owed to him under sections 190 to 193 and 195 and 196 (duties to persons found to be homeless or threatened with homelessness)....

(f) any decision of a local housing authority as to the suitability of accommodation offered to him in discharge of their duty under any of the provisions mentioned in paragraph (b) or (e) or as to the suitability of accommodation offered to him as mentioned in section 193 (7)....

(3) A request for review must be made before the end of the period of 21 days beginning with the day on which he is notified of the authority's decision or such longer period as the authority may in writing allow."

39. Section 204 provides a right of appeal to the County Court against a decision on a review under section 202 on a point of law, within 21 days or such longer time as may be allowed pursuant to section 204 (2A). By section 204 (3)

"On appeal the court may make such order confirming, quashing or varying the decision as it thinks fit."

40. Section 206 provides in part

"(1) A local housing authority may discharge their housing functions under this Part only in the following ways-

(a) by securing that suitable accommodation provided by them is available,

(b) by securing that he obtains suitable accommodation from some other person, or

(c) by giving him such advice and assistance as will secure that suitable accommodation is available from some other person."

41. The Guidance referred to in section 182 is contained in the Homelessness Code of Guidance for Local Authorities ("the Code of Guidance").
42. Paragraph 14.4 of the Code of Guidance states

"Housing authorities have a duty to ensure that the applicant is provided with advice and assistance in a number of different circumstances, and these are dealt with below. These duties require an assessment to be made of the housing needs of the applicant before advice and assistance is provided. This assessment may need to range wider than the housing authority's inquiries into the applicant's homelessness carried out for the purpose of s184, and should inform the provision of appropriate advice and assistance for that particular applicant. Among other things, the Secretary of State considers the assessment should identify any factors that may make it difficult for the application to secure accommodation for him or herself, for example, poverty, outstanding debt, health problems, disabilities and whether English is not a first language. In particular, housing authorities are advised to take account of the circumstances that led to the applicant's homelessness, or threatened homelessness, since these may impact on his or her ability to secure and maintain accommodation and may indicate what types of accommodation may be appropriate."

43. Paragraphs 14.28 and 14.29 of the Code of Guidance deal with the advice provided under section 190 to persons who are intentionally homeless but in priority need;

"14.28 The accommodation secured must be suitable. Housing authorities must consider each case on its merits when determining the period for which accommodation will be secured. A few weeks may provide the applicant with a reasonable opportunity to secure accommodation for him or himself. However, some applicants might require longer, and others, particularly where the housing authority provides proactive and effective advice and assistance, might require less time. In particular, housing authorities will need to take account of the housing circumstances in the local area, including how readily other accommodation is available in the district, and have regard to the particular circumstances of the applicant, including the resources available to him or her to provide rent in advance or a rent deposit where this may be required by private landlords.

14.29 In addition to securing accommodation, the housing authority must ensure the applicant is provided with advice and assistance to help him or her secure accommodation for him/herself. This might include, for example, assistance with a rent deposit or guarantee to help the applicant to obtain accommodation in the private rented sector, or advice on applying for an allocation of long term social housing or accommodation through another social landlord."

THE ISSUES

44. The Claimant's case can be summarised as follows.

i) The Council did not carry out any or any proper assessment of the Claimant's housing needs in accordance with section 190(4) of the 1996 Act.

ii) The Council failed to provide any or any proper advice and assistance to the Claimant, pursuant to section 190(2)(b) of the 1996 Act.

iii) The Council adopted a rigid approach and/or fettered its discretion with regard to the advice and assistance provided, generally and with regard to the Claimant's rent deposit scheme and or rent guarantees.

iv) The Council was in breach of obligations to secure obligations to secure accommodation for reasonable period, pursuant to section 190 (2) (a) of the 1996 Act.

45. In addition to refuting the Claimant's case, the Council argued that

v) The issues raised in this application by the Claimant could have been raised by way of the review and appeal procedure in section 202 of the 1996 Act, and therefore Judicial Review is not appropriate.

vi) Even if Judicial Review could in principle be an appropriate remedy in this case, the Claimant should not be granted relief, because of excessive delay.

46. The above list of six issues is essentially the list of issues set out in the Claimant's skeleton argument, save that the Claimant added as a further issue (the second in her list) the question whether the Council failed to take into account relevant considerations including the Claimant's personal circumstances and/or her right to family life in accordance with Article 8 of the European Convention on Human Rights. It seems to me that the points the Claimant made in this regard can be taken on board as part of a consideration of the issues as listed above. I should add that the Claimant's counsel drew my attention to statements in the Council's Housing Advice Manual (see eg at page 55) that advice should be confirmed in writing. However, she did not suggest that the lack of written confirmation to the Claimant of any advice given was of itself a ground for claiming the relief sought in these proceedings.

SECTION 190(4) - ASSESSING HOUSING NEEDS

Submissions

47. The Claimant argues that section 190 becomes relevant only after a decision is reached under section 184 of the 1994 Act, because it applies only to a case where the authority is satisfied that a person became homeless intentionally. The Claimant says that the Council failed to carry out any or any proper assessment of the Claimant's need, before the provision of appropriate advice and assistance.
48. To counter the Claimant's case, the Council relied on the witness statement of its Senior Review Officer, Emma Brickwood. Ms Brickwood said (paragraph 30) that a housing need assessment requires a broad approach;

"As well as being aware of the cause of any housing problem (which will be identified as part of the inquiries into any homeless application) and the housing career of an applicant, an assessment will look at the practical aspects of housing, such as: size of accommodation, location of accommodation, including whether there are any areas in which the applicant cannot live, accessibility issues, support needs, needs of family members. Additionally, it will look at any barriers that exist to meeting housing need or resolving a housing problem...."

49. Ms Brickwood emphasised (paragraph 31) that

"The approach is holistic, it is to identify what the applicant's needs for housing are. It is holistic because some of the cures may not be housing-related...."

50. Ms Brickwood continued (paragraph 32) that the housing needs assessment is a cumulative process. It begins when an applicant approaches the HAOT and continues in any subsequent approach to HAOT and in any contact with EHU.
51. Ms Brickwood said (paragraph 33) that she could not understand why the Claimant says her housing needs have not been assessed.

"...They were assessed at every stage of her involvement with the HAOT and EHU: when she first approached for advice and assistance through HAOT; during the section 184 decision process; when Ms Savage attended the HAOT after the section 184 decision was notified to her and after she had finally left her temporary accommodation; her and her children's needs were assessed by social services as part of an initial assessment under Children Act 1989; HAOT would have assessed her needs again before providing advice and assistance. To say there has been no assessment is just wrong.

34 I think the confusion arises because there is no individual, written assessment of Mrs Savage's needs. That is correct, but there wouldn't be in the ordinary course of events. It would not be practical to do so as housing needs may change over time and the assessment of them needs to be organic. It is part of the role of the housing officer to look through the housing file and see what information has been gathered in the past and feed that into any assessment of housing need."

52. Ms Bretherton for the Claimant accepted that there are no formalities associated with the requirement to assess under section 190(4). It need not be recorded in a document. However, here, it was said, there was no assessment at all. It could not be disputed, said Ms Bretherton, that there were a number of highly relevant factors in this case;

i) The Claimant was evicted for rent arrears and so could provide no referee.

ii) The Claimant had no deposit, and no real possibility of finding a landlord which did not require a reference and/or deposit.

iii) The Claimant had no settled address and a county court judgement against her, so would probably not be granted a bank loan or any other loan.

52. Ms Bretherton said that the Council had entirely failed to consider any of the factors identified above as part of any assessment as to what advice and assistance was needed in this case. Indeed, its evidence was restricted to generalities.

Conclusions

53. Clearly, an assessment of housing need had to be carried out pursuant to section 190(4). Further, I agree with Ms Bretherton that any such assessment is required only after the authority has reached its decision under section 184. Again, it is plain from the statute that such an assessment must be carried out before advice and assistance is given under section 190(2)(b). However, in my judgement for the Claimant to say that no assessment of housing needs was done in this case lacks reality.
54. The fact is that by the time the Council reached its section 184 decision it was familiar with the Claimant. The summary of the history at the beginning of this judgement shows that the Claimant had come to the Council's housing department for advice on a number of occasions. The Council was in my judgement well aware of the needs of the Claimant. It knew that she had been evicted for rent arrears, pursuant to a county court judgement. It knew that she had very little money. The section 184 letter shows that the Council had made detailed investigations of the Claimant's situation, and had in its possession a substantial amount of information about her position. It knew that landlords usually require a deposit-hence the Finder's Fee scheme. It knew, also, what kind of accommodation she required, because in October it had housed her itself in a two bedroom flat in Hayes, which the Claimant accepted was suitable for the needs of her and her son.
55. To require the Council to perform a new assessment of the Claimant's needs, once the section 184 decision had been taken, would in my view be wholly artificial. It would in effect be to require the Council to put out of its mind the knowledge it had thus far acquired, and to acquire it again as part of a new investigative process. I do not think that was intended by the legislature. Under section 190 (4) the Council was required to assess the Claimant's needs. It did so, by applying the knowledge of the Claimant that it already had.
56. I therefore find that the Council did not fail to perform its duty under section 190(4) of the 1996 Act. It performed its duty, in that it assessed the Claimant's needs. I think the Claimant's real complaint is that any advice or assistance offered did not satisfy the Claimant's needs.

SECTION 190 (2) (b) - ADVICE AND ASSISTANCE

Submissions

57. Ms Bretherton argued that the Council had not provided any advice or assistance to the Claimant, or that such advice and assistance as it did provide was inadequate. I was told that there is no authority on the content of the duty under section 190(2)(b), just as there is no authority on the duty under section 190(4).
58. Ms Bretherton said that the approach of the Council is set out in the telephone conversation with Mr Murtagh, set out at paragraph 23 of this judgement. That approach was to suggest loans or help from family and friends or attempting to find a landlord who did not require a deposit. When advised that all options were exhausted, he stated there was no tiling that could be done. The suggestions made by Mr Murtagh, said Ms Bretherton, were wholly unrelated to the Claimant's circumstances as a result of the failure to carry out a proper assessment of her needs.
59. Ms Bretherton made submissions about the nature of the advice and assistance the Council should have provided.
60. Ms Bretherton relied on section 206 (1) (c ) of the 1996 Act. She said that provision meant that in order to count as advice and assistance for the purpose of Part VII of the 1996 Act, the help given by the Council must be such as will ensure that suitable accommodation is available.
61. In any event, Ms Bretherton said, in circumstances where the Council was not itself prepared to provide accommodation for the Claimant, or to secure that she obtained such accommodation from someone else, it was irrational for the Council to offer any advice or assistance which did not involve assisting her with a payment in lieu of a deposit, pursuant to the Finder's Fee scheme. The reality was that without a deposit the Claimant simply could not find accommodation, and that she had no hope of herself finding a deposit.
62. Ms Bretherton reinforced that submission with an argument based on Article 8 of the European Convention. She made clear that she was not suggesting that homelessness itself interfered with Article 8 rights. However, she relied on the right to family life. Social Services had said that it would house the Claimant's son, but not the Claimant. Ms Bretherton accepted that the decision of the House of Lords in R (G) v Barnet London Borough Council [2003] 3 WLR 1194 established that the decision by a local authority's social services department under the Children Act 1989 to accommodate a child but not his mother does not breach Article 8 rights. However, where its own social services department had taken such a decision in this case, by failing to provide the Claimant with a deposit or with accommodation, the Council as housing authority was interfering with the Claimant's right to family life, in that its decision not to assist would lead to the Claimant being separated from her son.
63. In responding to Ms Bretherton's arguments, Mr Johnson for the Council said that the Council had provided advice and assistance to the Claimant on a number of occasions since sending the section 184 letter. To begin with, the Claimant received advice on 18^th December 2008 when she visited the Council's offices in response to the invitation in the section 184 letter. The advice then given was recorded by the Council, as set out at paragraph 9 of this judgement. After that, said Mr Johnson, the Claimant made no approach to the Council for many months, until she had been evicted from the Hayes flat. Then, when her solicitors approached the Council, further advice was given by Mr Murtagh on 17^th August 2009, as recorded by the Claimant's solicitor. Finally, on 21^st August 2009, further advice was given by the Council, as set out at paragraph 25 of this judgement, when the Claimant visited the Council's offices.
64. Mr Johnson said there was no reason why the advice given on those occasions should not count as advice and assistance pursuant to section 190 (2) (b) of the 1990 Act. There was no foundation for the submission that in order to qualify as advice and assistance within that provision, the help given by the Council had to lead to accommodation actually being available. The fact was that the Council was not obliged to provide accommodation for the Claimant, as a person who was intentionally homeless, albeit in priority need. Nor was the Council obliged to provide the Claimant with a deposit, or a "Finder's Fee" in place of a deposit. In those circumstances, there was, in truth, little the Council could do. It was reasonable for the officers to give the advice that the Claimant should seek accommodation in the private sector, and to tell her that she should seek what help she could from the Housing Benefit regime. She was also told about "Locata", which is a system whereby prospective tenants are placed on a waiting list for Council accommodation. I was told that it can take a long time to come to the head of the list.

Conclusions

65. I am unable to accept Ms Bretherton's submissions. To begin with, I do not accept that the effect of section 206(1)(c) is that to qualify as advice and assistance, the help given by the Council must be such as will ensure that suitable accommodation is available. As Mr Johnson pointed out, if that were the case, it would mean that a housing authority is in effect obliged to ensure accommodation is provided for all homeless persons, whether or not they are in priority need and whether or not they are intentionally homeless.
66. In the legislative scheme there is intended to be a difference between the position of the homeless who are in priority need and who are not homeless intentionally on the one hand and those who are homeless but who do not meet both those requirements, on the other hand.
67. For those who are in priority need and not homeless intentionally, section 193 imposes on the relevant housing authority the duty to "secure that accommodation is available for occupation by the applicant." (see section 193(2)).
68. The fact that in relation to those not covered by section 193, the housing authority's duty is different, and less, is shown clearly by section 192. Section 192(2) states that the authority shall provide advice and assistance. Section 192(3) states that

"The authority may secure that accommodation is available for occupation by the applicant." [my emphasis]

69. For section 206(1)(c) to have the meaning contended for by Ms Bretherton would be inconsistent with section 192, which expressly states that although there is a duty to provide advice and assistance, securing accommodation is not a duty but a power, which the authority may exercise.
70. I do not think section 206(1)(c) applies to the provision of advice and assistance. Section 206 is dealing with the authority's housing functions in Part VII, which I think in this context refers to cases where the authority is to provide or secure the provision of accommodation. In that regard I note that the commentary to section 206 in the Encyclopedia of Housing Law and Practice suggests that section 206 deals with how authorities are to discharge their functions under section 193.
71. In my judgement, what the Council told the Claimant was, indeed, by way of providing advice and assistance. I do not accept Ms Bretherton's submission that in the circumstances of this case it was irrational for the Council not to provide her with a deposit, or, which would be the equivalent, assist her under the Finder's Fee scheme. There may be situations where a housing authority gives advice and assistance which does not lead to accommodation becoming available for a person falling with section 190(2)(b). I think that is contemplated by the legislature.
72. In this case, the Council was not prepared itself to provide the Claimant with accommodation, nor to secure accommodation for her from others. That was a position it was entitled to take. Further, it was not obliged to help the Claimant with a deposit, or to assist her under the Finder's Fee scheme. It was, however, obliged to offer advice and assistance. In my view, it did so. The reality was that in the circumstances, where it was not providing accommodation or a deposit, there was little advice or assistance it could offer. That does not make its actions unlawful.
73. I do not think Article 8 assists the Claimant in this case. I accept the submission of Mr Johnson for the Council that the failure of the Council to provide the Claimant with a deposit or a "Finder's Fee" involved no interference with the Claimant's Article 8 rights to family life. There was no question of separation of mother and son until Social Services offered to house her son, but not the Claimant. The Claimant was then left with a choice; either to accept the offer of Social Services, or to keep her son with her, and either cease to be homeless, or remain homeless, which the Claimant's counsel accepted would not itself involve a breach of her Article 8 rights. In my judgement, the actions of the Council as housing authority did not breach the Claimant's article 8 rights.
74. I should add that I do not think the Claimant can succeed in its contention that the Council failed to take account of the Claimant's personal circumstances, in the context of either the duties either under section 190(2) or section 190(4), either initially in 2008, or later. It is plain from the section 184 letter and the records of the Claimant's visits to the Council before then for housing advice that the Council was well aware of the Claimant's circumstances. Further, in August 2009 Mr Murtagh's attention was specifically drawn, in the context of Article 8, to the fact that Social Services had indicated they would house the Claimant's son only, and it is clear from the Claimant's solicitor's note of the conversation with Mr Murtagh that this matter was specifically discussed with him.

FETTERING OF DISCRETION

Submissions

75. Ms Bretherton submitted that even if it could be rational for the Council not to assist the Claimant under the Finder's Fee scheme, in refusing to assist the Claimant in this way the Council had fettered its discretion. She submitted that the Finder's Fee scheme was a rigid policy whereby those who are homeless intentionally are simply excluded. Alternatively, if the Finder's Fee scheme was not a rigid policy, it had been applied as if it were. There was no evidence that the Council had considered the Claimant's individual circumstances when deciding whether or not assist her under the Finder's Fee scheme.
76. For the Council, Mr Johnson relied on the wording of the Finder's Fee scheme. He referred to paragraph 5.6 of the Procedure Note on the scheme, which states not that those who are intentionally homeless cannot benefit from the scheme, but only that "they are not likely to be eligible...." Mr Johnson said that this was not a rigid policy, but a flexible one.
77. As to the application of the policy, Mr Johnson relied on the evidence of Ms Brickwood. At paragraph 47 of her witness statement Ms Brick wood said

"I understand that Ms Savage is objecting to the failure to assist her financially under the Finder's Fee scheme. I have set out the procedure for referring an applicant to the Finder's Fee scheme earlier in this statement. Applying that policy, Ms Savage was refused assistance because it was not considered appropriate to assist her because her own deliberate actions had led to her homelessness. Naturally we also considered Ms Savage's capacity to obtain accommodation for herself using the advice and assistance that we had already provided and the amount of time that she'd had to make alternative arrangements (which had been considerable). In those circumstances she was considered ineligible."

78. Mr Johnson submitted that the above paragraph showed that the Council had not simply excluded the Claimant from the Finder's Fee scheme because she was homeless intentionally.

Conclusions

79. Although Ms Brickwood's evidence on this matter suggests that the policy in relation to Finder's Fee was, indeed, applied flexibly, I am not satisfied that it was so applied. It has to be remembered that, as Mr Johnson submitted, advice was given by the Council on a number of occasions after the section 184 letter, beginning on 18^th December 2008. On that date, the Claimant was told simply that "HAOT cannot assist with f/f [the Finder's Fee scheme] as she is not eligable for scheme. IH [intentionally homeless] decision issued 3/12/08." That seems to me to be advice that she was ineligible for Finder's Fee because she was intentionally homeless.
80. Paragraph 47 of Ms Brickwood's statement suggests, in the last sentence, that the Council also considered other matters, including the considerable amount of time the Claimant had had to find other accommodation. As I suggested to Mr Johnson during the hearing, this appears to relate to a time well after the meeting at the Council offices in December 2008. Ms Brickwood's comment appears more naturally to relate to the time when the Claimant came back to the Council for help, in August 2009.
81. However, in the notes of the Claimant's instructing solicitor's conversation with Mr Murtagh of 17 ^th August 2009, and of the Claimant's meeting with Council housing officers on 21^st August, there is no record of the issue whether the Claimant should be assisted under the Finder's Fee scheme being reconsidered. Further, paragraph 5.6 of the Procedure Note relating to the scheme requires the case to be discussed with a team leader where there is intentional homelessness. This appears to suggest that whether the applicant should benefit from the Finder's Fee scheme in such circumstances should be discussed with a team leader; and Mr Johnson accepted during the hearing that Ms Brickwood's evidence did not suggest that this issue had been discussed with a team leader.
82. Ms Bretherton noted that Ms Brickwood had not been the housing officer dealing with the Claimant's case, and that she did not even assert in her witness statement that she had spoken to those housing officers who had dealt directly with the Claimant. In effect, Ms Bretherton suggested, it appeared that Ms Brickwood had constructed her witness statement from the written records, and the last sentence of paragraph 47 was reconstruction which represented what Ms Bretherton hoped or wished had been the way the Council considered whether to assist the Claimant under the Finder's Fee scheme.
83. I have no reason to suppose that Ms Brickwood deliberately misstated what the Council did in relation to this issue. However, looking at the evidence before me overall, I cannot be satisfied that the Council properly applied its own policy. I think the reality, as shown by the contemporaneous records of what the Council's officers told the Claimant, is that the Council excluded the Claimant because she was intentionally homeless, and did not consider whether to offer her the benefit of Finder's Fee nevertheless, because of her own particular circumstances. The fact that there is a lack of contemporaneous evidence of consideration of whether to assist the Claimant with Finder's Fee having regard to her particular circumstances is all the more surprising because in the Code of Guidance, which by section 182 the Council had to take into account in the exercise of its functions, assistance with deposits is specifically mentioned as a possible way of helping the intentionally homeless-see paragraph 14.29.
84. In my view, Mr Johnson is right to suggest that the Finder's Fee policy was not rigidly excluding those who were homeless intentionally. In those circumstances, the Council did not fetter its own discretion by adopting that policy. However, it appears to me that the Council applied the policy as if it were rigid, and thus misunderstood its own policy. That means that in this respect it acted unlawfully in the way it purported to discharge its duty to provide advice and assistance under section 190 (2) (b).

PROVISION OF ACCOMMODATION-SECTION 190(2)(a).

Submissions

85. The final aspect of the Claimant's case concerns whether the Council performed its duty under section 190(2) (a) in respect of the provision of accommodation. Ms Bretherton relied on Conville v Richmond Upon Thames Council [2006] 1 WLR 2808 for the proposition that the authority was obliged to consider what was a reasonable opportunity for the applicant to secure accommodation from the standpoint of the applicant and not taking into account the resources of the authority.
86. She submitted that the Council had failed to apply the correct test and that had it applied the correct test, it would have concluded that a far longer period was required than the 28 days provided. This was particularly the case given the failure to provide advice and assistance. Had the Council provided a rent deposit and/or guarantee, or helped the Claimant under the Finder's Fee scheme, it might well be the case that a decision to provide accommodation for a short period of time would be lawful.
87. Ms Bretherton said that the Code of Guidance recognises the link between these matters, in paragraph 14.28. In a case where the Council had failed to assess the Claimant's needs and to provide proper advice and assistance, a far greater burden could fall on the Council, as a result of its own failings.
88. Mr Johnson said that what was a reasonable opportunity was for the Council to decide. Further, it had expressly so decided, in the section 184 letter, and it had allowed the Claimant 28 days. That was a matter for the Council, and not the court, to determine.

Conclusions

89. I accept the submissions of Mr Johnson. In this context I find helpful the words of Pill LJ in Conville v Richmond Upon Thames Council [cited above]. He said at paragraph 38;

"I accept that what is reasonable in the present context is to be assessed by reference to the particular needs and circumstances of the Applicant. It should have regard to the possibilities open to the Applicant, some of which have been described in this judgement. If the Applicant is not making reasonable efforts to pursue the possibilities open to him, that will be a strong indication that he should not be given more time. Moreover, the word opportunity connotes something temporary, something that may lapse if not taken up, or if taken without achieving the desired result. A moment will normally be reached when, in spite of reasonable efforts, time will expire if possibilities have not come to fruition. It may be borne in mind that what is contemplated in Part 7 is temporary provision for homeless people and not, as in Part 6, long term allocation of housing."

90. At paragraph 40 Pill LJ said

"...I do not accept that the construction of s190(2)(a) I prefer creates a 'virtually open ended obligation upon the authority to provide accommodation until such time as the Claimant has obtained sufficient funding to rent property.' What amounts to a reasonable opportunity will depend on the particular circumstances but it is an assessment the authority are capable of making without converting it into a duty to meet the Appellant's needs. In this statutory context, a distinction is maintainable between giving a reasonable opportunity and giving such an opportunity as will succeed in obtaining accommodation. The duty to provide a reasonable opportunity falls short of a duty to provide long term accommodation."

91. In this case, it seems to me that it was for the Council to decide what would be a reasonable opportunity. It did not have to identify a period of such length that the Claimant would necessarily be able to find accommodation before the period expired. I was told by Mr Johnson, and this was not disputed, that in making decisions under section 190(2 (a) the Council does not simply allow 28 days as standard for all applicants, and that the period allowed is sometimes shorter. In my judgement the Council decided on the period it was to allow under section 190(2)(a) in the context of the section 184 assessment, and in the context of the knowledge it already had of the Claimant and her needs. As I have already said, in dealing with the first issue, by the time of the section 184 letter, the Council already had a substantial amount of information about the Claimant, and knew what her needs were. Overall, I find that the Council performed its duty under section 190(2)(a) reasonably and in accordance with the law.
92. It should be added that the Council in fact allowed the Claimant a much longer period than 28 days to remain in the flat in Hayes. The Claimant was not evicted from that accommodation until 11^th August 2009, more than eight months after the date of the section 184 letter. Had I found that in allowing 28 days the Council was in breach of section 190(2)(a), I would have taken that substantial extra period into account as a factor pointing against exercising my discretion to grant relief on this ground.

COULD THESE MATTERS HAVE BEEN PURSUED BY REVIEW, AND IF SO IS JUDICIAL REVIEW APPROPRIATE?

Submissions

93. Mr Johnson argued that section 202 provided the Claimant with the remedy of review by the Council, and an appeal on a point of law to the County Court. The Claimant did not avail herself of that right, but rather sought judicial review. That was a misuse of judicial review procedure, which Mr Johnson suggested could probably be explained by the fact that the Claimant would have been out of time to seek a review.
94. Mr Johnson said that this view of the statutory scheme, and of the availability of review, was the approach adopted in R (Ahmed) v Waltham Forest LBC [2001] EWHC Admin 540, at paragraphs 11 and 17.
95. Ms Bretherton said, first, that the question of the lawful discharge of the section 190 duty does not fall within the scope of the matters which can be reviewed in section 202. Ms Bretherton said secondly that in any event, even if review would have been available, the High Court had discretion nevertheless to entertain an application for judicial review, and should do so in this case.
96. In relation to her first submission, Ms Bretherton said that the focus of section 202 is on the issue whether duties exist. Section 202(1)(f) is an exception, in that it confers a right of review on the issue of the suitability of accommodation. If section 202(1)(b) were intended to cover method of discharge of duties, then section 202(1)(f) would be otiose.
97. Further, said Ms Bretherton, section 202 must be read together with section 184. The requirement of notification under section 184 (3) is an obligation to notify the applicant of the housing authority's decisions under section 184(1) and (2) on eligibility for assistance, if so what if any Part VII duty is owed, and whether the applicant has a local connection with another authority. It is the section 184 decision which can be reviewed and discharge of obligations does not fall within the scope of the section 184 decision. That is why the case of Conville was dealt with by way of judicial review.
98. Ms Bretherton drew attention in support of her submission based on section 184 to the requirement in section 184 (5) to notify the applicant of his right to request a review under section 202. Here, there was no written notification of the decision that appropriate advice and assistance had been provided and no notification of the right to review. That points to the Council's action in this case not being amenable to review under section 202.
99. In relation to discretion, Ms Bretherton said the relief sought by the Claimant was wider than that available to a County Court judge sitting on a statutory appeal, in that declaratory relief was being sought. Further, discretion should be exercised in the Claimant's favour because a decision that cases such as this could be pursued only by review would be a significant change of practice, so it would be inappropriate to refuse relief. Finally, the matter had proceeded to a full hearing, so it would be inappropriate now for the court to say that no relief should be granted.

Conclusions

100. I see force in Ms Bretherton's submission that the present case is not covered by section 202(1)(b), and that the subsection is concerned with whether duties exist, as identified by a decision pursuant to section 184, and not v/ith the discharge of those duties. As Ms Bretherton argues, if section 202(1)(b) were to apply to questions of the discharge of duties, then section 202(1)(f) would be otiose.
101. Ms Brethterton's submission gains further force from the fact that Conville [cited above] appears to have proceeded by way of judicial review, without any suggestion that the review and county court appeal procedure should have been followed instead. That was a case under section 190(2)(a) only, of course, but it would be strange if a different route through the courts were required for claims relating to section 190(2)(b).
102. A conclusion that section 202 did not apply in such cases would be inconsistent with the view expressed by Harrison J in Ahmed [cited above]. However, it appears from paragraph 11 of that judgement that it was common ground that the procedure of review and appeal to the county court were available in cases about the discharge of duties under section 190(1), so that the learned judge did not hear argument on both sides.
103. However, I do not need to decide the question whether section 202 applies in such a case as this, because even if I considered that the procedure of review and appeal to the county court could have been followed in this case, I would nevertheless in my discretion decline to refuse relief on that ground. My main reason for so doing would be that at the hearing it was accepted on behalf of the Council that it would be useful to have the guidance of this court on the various statutory provisions discussed in this judgement, and to that end the Council had not opposed the grant of permission in this case. Further, it is at least not clear that section 202(1)(b) would permit the determination of the issues in this case by the review and county court appeal procedure, and that of itself is a ground for the exercise of the discretion to entertain this application; see R (Ogbeni) v LB Tower Hamlets [2008] EWHC 2444 (Admin), per Rabinder Singh QC, sitting as a Deputy Judge of the High Court (see the last three paragraphs of the judgement, all numbered 104).

DELAY

Submissions

104. The final issue is delay. Mr Johnson submitted that even if judicial review is in principle available, relief should be refused on the ground of delay. In his skeleton argument Mr Johnson argued that the only clear decision identified by the Claimant was the decision under section 184 made on 3^rd December 2008. Any challenge by way of judicial review should have been brought within three months of that date.
105. He continued that even if the Claimant was right to assert that the duties under section 190(1)(b) are ongoing, it could not sensibly be suggested that such duties were ongoing for a period of eight months, allowing the Claimant to bring her action in August 2009.
106. Ms Bretherton responded that the obligation to provide advice and assistance was an ongoing one, and that that the Claimant behaved promptly after her lawyers reminded the Council of the obligation to provide advice and assistance and the Council refused.

Conclusions

107. It seems to me that considerations of delay are different as between the challenge to the Council's actions under section 190(2)(a) and those under section 190(2)(b). In the case of the former, the decision of the Council was clearly taken on 3^rd December. Had I considered that the Council had behaved unlawfully in its decision to allow the 28 day period, I might well have refused relief on the ground of excessive delay.
108. However, the position with regard to the provision of advice and assistance is different. Plainly, time could not run, in any event, from 3^rd December 2008, because no advice or assistance had been given by that time. The section 184 letter stated only that the Council had a duty to provide advice and assistance, and invited the Claimant to visit the Council's offices to receive that advice and assistance. Mr Johnson accepted that was the position, and then suggested that time should run from the 18^th December, when the Claimant visited the Council's offices, and was advised by Council officers. He submitted that it was clear to the Claimant then that the advice given on that date was all that was on offer, and that the Claimant's statement at paragraph 10 recognised that.

109. I do not agree. Paragraph 10 of the Claimant's statement refers in my judgement to the Claimant's receipt of the section 184 letter itself, and not to the interview on 18^th December. I do not think it has been demonstrated that it was made clear to the Claimant on 18^th December 2008 that what was then said by the officers was the limit of any advice or assistance that the Claimant would receive. Indeed, I find it significant that at the hearing before me it was a part of the Council's case that the advice and assistance it gave to the Claimant included what was said to her solicitors on 17^th August 2009 by Mr Murtagh, and what was said to her by Council officers on 21^st August 2009.

110. In those circumstances, it cannot in my judgement be right to say that time began to run against the Claimant on 18^th December. It seems to me that the actions of the Council recognised that the provision of advice and assistance was an on-going duty. In those circumstances, it cannot be said that in respect of this aspect of the case the Claimant failed to act promptly.

OVERALL CONCLUSIONS

111. Accordingly, in my judgement the Council acted unlawfully in the exercise of its duty to provide advice and assistance, because it misunderstood and therefore misapplied its own policy with regard to the Finder's Fee scheme. I consider that judicial review is an appropriate remedy in principle in this case, and I do not consider it right to refuse relief on the ground of delay in commencing proceedings. I reject the Claimant's other grounds. I will consider any submissions from counsel about the terms of the Order.